The Presidency Will Only Grow More Powerful (No Matter Who Wins)

Upset about drones: Pakistani and American protesters.(AP Photo/Muhammed Muheisen)

This is the season of promises, so it might be worthwhile to remember that four years ago then-candidate Barack Obama frequently inveighed against what he viewed as the excesses of the Bush administration—particularly in the area of national security. If elected, the thinking went, Obama would restore some modesty to a White House that appeared at times to believe in few, if any, limits on executive authority. He would replace the fevered passion of wartime with cool restraint.

Obama succeeded President Bush all right—but one would be forgiven for not noticing much of a change in the way the chief executive does business. Like Bush, Obama clearly believes in an aggressive, expansionist view of presidential power, a stance that alarms some civil libertarians and constitutional scholars. And, like his predecessor, the president has not waited for Congress to act when the White House has some basis for moving unilaterally.

Obama out-and-out reversed his position on closing the prison for suspected terrorists at Guantánamo Bay, and he accelerated the nation’s antiterrorist drone program. But that’s not all. This is a president who, after all, committed American forces to undermine the Libyan regime absent any patina of congressional approval and who, earlier this year, instructed immigration authorities to simply ignore part of a federal statute that calls for the deportation of certain young illegal immigrants. It’s an administration that refused to comply with a congressional oversight investigation into a program that placed weapons in the hands of Mexican drug lords, and one that supported the federal takeover of the health insurance market as part of the Democrats’ Affordable Care Act.

The use—or abuse—of presidential power is often in the eye of the beholder. So, like the liberals before them last decade, conservatives howled at Obama’s moves. (In the case of the health care law, the backlash helped spark the rise of a political countermovement: the tea party.) But if Mitt Romney is elected next month, he is unlikely to usher in a new era of diminished executive authority. Indeed, there is little reason to believe that Romney’s approach to governing would be markedly different from Obama’s or Bush’s.

Romney has pledged to use the powers of the presidency aggressively to roll back tenets of the current administration, for instance by exempting states from the health care law and fast-tracking permits for oil and gas drilling. He supports the drone program—even to the point of endorsing its use to kill U.S. citizens overseas—and has expressed willingness to return to the kind of “enhanced interrogation” techniques for high-value suspected terrorists that were used during the Bush years and which Obama has banned.

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In short, the name may change. But the attitude will remain.

“AN IMPERIAL PRESIDENCY”

Much as President Carter was viewed as the antidote to the diseased arrogance that pervaded the Nixon administration, Obama appeared committed to curtailing the panoptic reach of the executive branch under Bush. As a presidential candidate in 2007, the senator from Illinois criticized what he saw as the administration’s “unacceptable abuse of power.” And on his first day in office, in an effort to show that his critique was serious, he signed an executive order mandating the closure of the prison at Guantánamo.

That the Cuban prison is still operating today says it all. In a high-speed collision between Obama’s ideals and the practicalities involved in the battle against global terrorism, the need for security largely won. The administration made some reforms, for sure: Obama outlawed interrogation methods that critics assailed as torture, and he revised the procedures for military commission trials to incorporate greater due-process protections.

But congressional and public opposition to the administration’s intent to try Qaida operatives such as Khalid Sheikh Mohammed in domestic federal courts as well as transfer Gitmo prisoners to a facility in rural Illinois persuaded the White House to keep the status quo relatively intact. Obama also opened up new antiterrorism fronts. Even as the administration wound down efforts in Iraq, it intensified the U.S. military presence in Afghanistan—with debatable effectiveness. And it massively ramped up the use of unmanned aircraft to take out suspected terrorists (which has certainly helped cut down on new arrivals at Guantánamo).

“In many ways, Obama realized the dream of Richard Nixon in creating an imperial presidency,” says Jonathan Turley, a national-security expert at George Washington University Law School. “Some of the claims Obama has asserted would make Nixon blush in terms of the unchecked unilateral authority.”

It’s the drone program that has most dismayed many of Obama’s supporters on the left, particularly the strikes that killed radical cleric Anwar al-Awlaki and his 16-year-old son, among others, in Yemen last year. A leader of al-Qaida in the Arabian Peninsula, Awlaki was a highly pursued target who was implicated in the failed plot to blow up an airliner bound for Detroit on Christmas Day in 2009. But he and his son were also American citizens—and they were killed without charges, trial, or conviction.